CLA-2 RR:TC:MM 959712 HMC
Port Director of Customs, Minneapolis
110 South 4th Street
Minneapolis, MN 55401
RE: PRD 3501-95-100245; Wagner USA Power Steamer-Wallpaper
Remover; Chapter 85; Headings 8424 and 8516; Subheadings
8516.79.00 and 8424.30.90; Explanatory Notes 84.24 and 85.16;
Electrothermic Appliances; Sand or Steam Blasting Machines;
Electrothermal; NY 859190; HQ 954781 and HQ 956226.
Dear Port Director:
This is our decision on Protest 3501-95-100245, filed
against your classification of the Wagner USA Power Steamer,
wallpaper remover (power steamer). The entries under protest
were liquidated on May 5, June 2 and June 9, 1995, and this
protest timely filed on June 28, 1995.
FACTS:
The merchandise under protest consists of a one gallon
container and a lightweight steamplate connected by an 11« foot
steam hose that weighs approximately 4.6 pounds when empty. The
machine provides continuous steam for up to 1« hours to remove
wallpaper from a wall. The user fills the container with hot tap
water which the unit heats to form steam within 15 minutes. The
steamplate is placed against a section of the wall for 10 to 20
seconds and moved along the wall to soften the wallpaper glue.
After this, the loose paper is completely detached with the help
of a scraper.
The merchandise was originally entered and liquidated under
subheading 8516.79.00 of the Harmonized Tariff Schedule of the
United States (HTSUS), as other electrothermic domestic
appliances: other. However, Protestant claims that the
merchandise is classifiable as other steam blasting machines
under subheading 8424.30.90, HTSUS.
The provisions under consideration are as follows:
8424 Mechanical appliances (whether or not hand
operated) for projecting, dispersing or
spraying liquids or powders; fire
extinguishers, whether or not charged; spray
guns and similar appliances; steam or sand
blasting machines and similar jet projecting
machines; parts thereof:
8424.30 Steam or sand blasting machines and
similar jet projecting machines:
8424.30.10 Sand blasting machines
8424.30.90 Other...1.5%
* * * *
8516 Electric instantaneous or storage water
heaters and immersion heaters; electric space
heating apparatus and soil heating apparatus;
electrothermic hairdressing apparatus (for
example, hair dryers, hair curlers, curling
tong heaters) and hand dryers; electric
flatirons; other electrothermic appliances of
a kind used for domestic purposes; electric
heating resistors, other than those of
heading 8545; parts thereof:
Other electrothermic appliances:
8516.79.00 Other...3.7%
ISSUE:
Whether the power steamer-wallpaper remover is classifiable
as an other electrothermic appliance of a kind used for domestic
purposes under subheading 8516.79.00, HTSUS, or as a steam or
sand blasting machine and similar jet projecting machine under
subheading 8424.30.90, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance
with the General Rules of Interpretation (GRIs). GRI 1 states in
part that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized system. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the notes should always be consulted. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (Aug. 23, 1989).
Protestant contends that the merchandise is appropriately
classified under subheading 8424.30.90, as steam or sand blasting
machines and similar jet projecting machines, but provides no
arguments to support this claim. EN 84.24 provides, as follows:
(C) STEAM OR SAND BLASTING MACHINES AND
SIMILAR JET PROJECTING MACHINES
Sand blasting machines and the like are often of heavy
construction and sometimes incorporate compresors. They are
used for de-scaling or cleaning metal articles, for etching
or putting a matt surface on glass, stone, etc., by
sujecting the articles to the action of high presure jets of
sand, metal abrasives, etc. They are usually fitted with
dust extractors to remove the residual sand and dust. The
heading also covers steam blast appliances used, for
example, for de-greasing machined metal, etc.
We believe that the power steamer does not meet the
definition of EN 84.24. The power steamer is not of heavy
construction and does not produce high pressure jet steam. On
the contrary, the power steamer produces low pressure steam,
applied by a flat steamplate, to saturate and loosen wallpaper
from a wall. This is not the type of machine contemplated in
heading 8424.
Chapter 85, HTSUS, provides in pertinent part, for
electrical machinery and equipment and parts thereof. EN 85.16
at page 1470 states that this group includes all electro-thermic
machines and appliances provided they are normally used in the
household. Accordingly, we must determine whether the power
steamer falls within the definition of electro-thermic machines
normally used in the household. The Section and Chapter Notes
and the ENs do not provide a clear definition of the term
"electro-thermic appliances of the kind used for domestic
purposes."
A tariff term that is not defined in the text of the HTSUS
and the ENs is construed in accordance with its common and
commercial meaning. Nippon Kogaku (USA)Inc. v. United States, 69
CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may
be determined by consulting dictionaries, lexicons, scientific
authorities and other reliable sources. C.J. Tower & Sons v.
United States, 69 CCPA 128, 673 F.2d 1268 (1982).
The term "electrothermal" is defined in Webster's II New
Riverside University Dictionary 423 (1988) as "[o]f or relating
to the production of heat by electricity." The term "domestic"
has also been defined as "of or pertaining to the family or
household." See Headquarters Ruling (HQ) 954781. Furthermore,
heading 8516 has been found to be a use provision. See HQ
956226.
Additional U.S. Rule of Interpretation 1(a), HTSUS, states
that in the absence of special language or context which
otherwise requires, a tariff classification controlled by use
(other than actual use) is to be determined in accordance with
the use in the United States at, or immediately prior to, the
date of importation, of goods of that class or kind to which the
imported goods belong, and the controlling use is the principal
use. The subject articles will thus fall under heading 8516 if
they are found to produce heat by electricity and are the class
or kind of articles principally used in the home.
The Court of International Trade (CIT) has established
various factors, which are indicative but not conclusive, to
apply when determining principal use within a particular class or
kind. They include: general physical characteristics, the
expectation of the ultimate purchaser, channels of trade,
environment of sale (accompanying accessories, manner of
advertisement and display), use in the same manner as merchandise
which defines the class, economic practicality of so using the
import, and recognition in the trade of this use. See Hartz
Mountain Corp. v. United States, 903 F.Supp. 57, 59, CIT Slip Op.
95-154 (Sept. 1, 1995).
In this instance, the power steamer is powered by
electricity to heat water and produce steam for wallpaper
removal. The container is small and light enough for one person
to use in the home. Indeed, the manufacturer describes and
advertises the power steamer as an easy to use machine with all
the features for safe household applications. Based on the
evidence provided, we believe that the merchandise qualifies as
electro-thermic, and that it is clearly designed and intended to
be principally used in the home. We therefore find that the
power steamer is described in heading 8516, as other
electrothermic appliances of a kind used for domestic purposes.
It is classifiable under subheading 8516.79.00. This is
supported by New York Ruling 859190, dated January 8, 1991, which
held that a domestic steam cleaning system is classifiable under
subheading 8516.79.00.
HOLDING:
Under the authority of GRI 1, Wagner USA Power Steamers are
provided for in heading 8516. They are classifiable in
subheading 8516.79.00, HTSUS.
This protest should be DENIED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, you should mail this
decision, together with the Customs Form 19, to the protestant no
later than 60 days from the date of this letter. Any
reliquidation of the entry or entries in accordance with the
decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals Division